To carry out its obligations under IGRA, the Department has developed and published

Indeed, even defendants appear to agree that NEPA must be followed in this context. After

specific policies. In accordance with official DOI policy, all gaming-related trust acquisition

2/
acquiring the one-sixth interest under restrictions against alienation in the Meh-No-Bah allotment, the
Quapaw submitted an application to the Eastern Oklahoma Regional Director of the BIA pursuant to Part
151 to have that one-sixth interest taken into trust. Prelim. Inj. Mem. Ex. 1(C). at 1. On December 20,
2007, Assistant Secretary Artman indicated that BIA did intend to “comply with NEPA requirements for
the pending acquisition of the [one-sixth] interest in the Meh-No-Bah allotment.” Id. Within days, the
Quapaw withdrew its application to have the one-sixth interest taken into trust. See Prelim. Inj. Mem. Ex.
4, J. DeHart Decl. ¶ 17.

requires compliance with NEPA, but it has conveyed all the interests in the Meh-No-Bah allotment, either
in trust or with restrictions against alienation, to the Quapaw without conducting any environmental
review of the tribe’s casino development under NEPA. Id. ¶ 12. “The bottom line is that the Tribe now
owns 100 percent of the Meh-No-Bah allotment and BIA records reflect that it is held in trust for the
Tribe.” Prelim Inj. Mem. Ex. 2(D), W. Nordwall Letter dated Aug. 6, 2007 at 2 (providing “a summary
of the acquisition of the Meh-No-Bah Quapaw allotment, [ ] on which [Nordwall] advised the Quapaw
Tribe”).

Thus, as matters stand, the Secretary has acknowledged that taking lands into trust for gaming

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applications must be referred to the Office of Indian Gaming in the Assistant Secretary for Indian

Affairs’ Office of Policy and Economic Development in Washington, D.C. See Prelim. Inj.

Cherokee County and other parts of what is known as the Tri-State mining district have been left

scarred by this history. Id. Today, the U.S. Environmental Protection Agency broadly monitors

this region and continues to engage in reclamation efforts. Id. To this day, communities in the

Tri-State mining district continue to be vulnerable to danger from lead, zinc, cadmium, and other

mining-related contaminants in soil and waters. Id. ¶ 25. Without an environmental study, it is

unknown whether construction and surface disturbance for the Quapaw casino development has

Cherokee County is not opposed to casino development per se; but it is opposed to casino

4/
development that threatens it and its citizens with a significant uncompensated burden without any review
by responsible officials. As set forth in greater detail in its preliminary injunction memorandum, it is
possible that Cherokee County will become the location for one of the four State Lottery-owned gaming
facilities authorized by the 2007 Kansas Expanded Lottery Act. If so, Cherokee County will receive a
percentage of revenues to ameliorate the negative impacts of the development, and under an agreement
between the County and Kansas Penn Gaming, Kansas Penn Gaming will provide additional direct
reimbursement to the County for the infrastructural and public safety costs incurred due to the Kansas
Lottery casino, see id. ¶ 36, and will remain fully responsible for complying with Kansas environmental
laws and standards and with any applicable federal environmental laws.

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caused or will lead to exposure of contaminants in soils or surface or groundwater in Cherokee

County or in other nearby areas.

Likewise, because there has been no environmental review, the Secretary has not

evaluated whether the construction and operation of the casino development violate or otherwise

implicate any substantive environmental laws. Based on the initial review of an environmental

consultant, Cherokee County determined that the project involved likely violations of the Clean

Govt. Br. at 24. But in Grand Council, the agency defendant did not have authority to consider

environmental interests There, the federal action at issue had to do with the agency’s rate-

setting authority, in connection with which the “Commission ha[d] affirmatively forsworn

environmental considerations.” Id. (emphasis added). Indeed, that agency had no authority to

consider environmental matters in carrying out its statutory functions. See id. (agency

previously had held that environmental factors were “beyond the Commission's authority to

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consider under sections 205 and 206 of the Federal Power Act" and that "the Commission's

authority is limited to review of the rates, terms and conditions of jurisdictional agreements to

ensure that they are just and reasonable and not unduly discriminatory or preferential.") The D.C.

Circuit also cited the agency’s prior holding that “Congress has not granted the Commission

authority to reject rate filings on environmental grounds.” Id.

Here, just the opposite is so. First, the obvious: There is no similar body of law that

immunizes federal actions pursuant to either ILCA or IGRA from consideration of

environmental impacts, and there is nothing in the statutes themselves that provides any basis for

exempting agency decisions from the requirements of NEPA. Second, the Department’s own

view: The Department of the Interior, and its agency the Bureau of Indian Affairs, not only have

authority but have promulgated express policies to carry out environmental reviews under NEPA

and regularly conduct environmental reviews of actions concerning Indian gaming. See infra

Part II.B.1. Indeed, this is conceded even in the government’s litigation position. Although it

(wrongly) claims that by incanting “ILCA” it can avoid the need for NEPA review, even the

government concedes that it has authority to engage in such review. See Govt. Br. at 29 n.13

(“[I]t would be within the Secretary’s discretion to prepare appropriate NEPA documents for

other ILCA transfers.”). 6/

Cherokee County plainly has standing to assert its NEPA and IGRA claims under the

APA, and the government’s motion to dismiss the complaint on that basis should be denied.

B.

The Quiet Title Act Does Not Bar Cherokee County’s Claims

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The government is wrong to the extent it suggests that compliance with NEPA is within the
Secretary’s unreviewable discretion. As discussed infra in Part II.B.1, where NEPA applies, federal
officers are required to comply with its mandates. Likewise, under the Administrative Procedure Act, the
only federal actions that are “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), are “those
rare instances where statutes are drawn in such broad terms that in a given case there is no law to
apply.” Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (internal quotation
marks omitted).

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The government also attempts to avoid judicial scrutiny by claiming that it slipped one

by. According to the government, now that the transfers have occurred, any review is barred by

the Quiet Title Act. That is so, it claims, because Cherokee County calls into question the

government’s title resulting from the Meh-No-Bah transactions. See Govt. Br. at 25-26. But the

Quiet Title Act is not implicated here.

The Quiet Title Act waives the United States’ sovereign immunity for actions to quiet

title involving property held by the United States but maintains the United States’ immunity with

respect to challenges to the United States’ title to trust or restricted Indian lands. 28 U.S.C.

393 F. Supp. 2d 1196, 1207 (W.D. Okla. 2005). Indeed, in each of the cases the government

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discusses, a ruling in favor the plaintiff would have affected the United States’ title to Indian

lands, by removing trust status or by altering boundaries of trust lands. See Govt. Br. at 25-26.

That is not the case here.

Defendants assert that Meh-No-Bah interests were trust or restricted lands before the

transactions at issue and remained so afterwards, pointing to the language of the deeds recorded

by the Bureau of Indian Affairs. See Govt. Br. at 21-22. 7/ For the purposes of adjudicating

Cherokee County’s claims, the Court can accept that assertion, because a ruling in favor of

Cherokee County does not require any finding by the Court concerning the trust status of the

Meh-No-Bah interests at the time of the Secretary’s transactions. In other words, the Court can

issue the declaratory relief sought – that the interests were invalidly acquired for gaming

purposes without adherence to the law and proper procedure – without affecting the United

States’ title to the land interest.

While Cherokee County takes issue with the Defendants’ failure to conduct any “Indian

lands” inquiry in connection with the Quapaw casino development, see infra Part III, and have

alleged facts that raise questions about the status of the land as of the early twentieth century,

see Am. Compl. ¶¶ 16-20, neither raises a sovereign immunity bar under the Quiet Title Act. As

discussed infra in Part III, the “Indian lands” inquiry is a requirement of IGRA that employs the

specific definition of “Indian lands” provided in that Act; it is not a determination about title to

lands, it is a determination about the eligibility of specific lands for lawful Indian gaming. 8/

Cherokee County’s factual allegations concerning the history of the Meh-No-Bah parcel may be

As the government agrees, for purposes of the Quiet Title Act and in general, “trust’ lands and

relevant to an appropriate “Indian lands” determination conducted by defendants, and serve in

7/
“restricted’ lands are treated identically under the law. See Govt. Br. at 3 n.4.
8/
and III and order the relief requested in Prayer for Relief ¶¶ 1 and 4 without in any way adjudicating a
question concerning the United States’ title to Indian lands.

It is certainly the case that the Court can grant Cherokee County summary judgment on Counts II

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the complaint to identify some of the facts and legal questions one would expect to find

addressed in an appropriate administrative record of an IGRA-compliant acquisition for Indian

gaming (and which are absent from the Administrative Record presented here).

Furthermore, there is no reason to apply the Quiet Title Act’s sovereign immunity

provisions to NEPA claims. In Neighbors, the Tenth Circuit addressed the plaintiff’s NEPA

claim and observed:

We do not think this request for relief is precluded by the Quiet Title Act.
Furthermore, considering various development proposals after the trust
acquisition would not be simply an exercise in futility. We, nevertheless,
conclude this request for relief is moot because the Secretary complied
with [NEPA] when approving a lease of the [ ] property. We do not think
it would be wise to require the Secretary to plow the same ground
twice . . . . Neighbors never argues the completed environmental
assessment does not adequately consider the environmental impacts and
alternatives to development of the property.

of “[a]gency action made reviewable by statute and final agency action for which there is no

other adequate remedy in a court.” 5 U.S.C. § 704. Section 706(2)(A) of the APA provides that

a court “shall . . . hold unlawful and set aside” agency action where it finds the action “arbitrary,

Moreover, APA claims challenging the agency’s decision to acquire Indian lands should be
9/
regarded as falling outside the Quiet Title Act. In South Dakota v. U.S. Dep’t of Interior, the Eighth
Circuit observed that “[w]e doubt whether the Quiet Title Act precludes APA review of agency action by
which the United States acquires title [for the beneficial use of an Indian tribe].” 69 F.3d 878 (8th Cir.
1995), cert. granted, judgment vacated, case remanded with instructions to vacate District Court judgment
and remand to Secretary for reconsideration, 519 U.S. 919 (1